Apparently Marvin Gaye is not the only one who wants to know. For those of us who live and breathe the appellate rules, recent cases issued by the Court of Appeals are providing more than ample food for thought.  The question that will not die is the extent to which the Court of Appeals is bound by its own precedent.

This issue was long thought to have been put to bed by In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989), where the Supreme Court of North Carolina explicitly stated that “a panel of the Court of Appeals is bound by a prior decision of another panel of the same court addressing the same question, but in a different case, unless overturned by an intervening decision from a higher court.”  That quoted language is frequently cited but the facts underlying that holding are worth reviewing.

In re Civil Penalty: I Heard It Through The Grapevine

In In re Civil Penalty, a civil penalty was imposed against the appellees for violation of the Sedimentation Pollution Control Act of 1973.  A superior court judge vacated the penalty and the Court of Appeals affirmed, relying on the Supreme Court’s decision in State ex rel. Lanier v. Vines, 274 N.C. 486, 497, 164 S.E.2d 161, 168 (1968).  In Lanier, the Supreme Court concluded that the Constitution of North Carolina did not give the Commissioner of Insurance unbounded discretion to impose penalties upon erring insurance agents in any amount between a nominal sum and $25,000.00.

After Lanier was issued and before In re Civil Penalty came out, the Court of Appeals distinguished Lanier in the case of North Carolina Private Protective Services Bd. v. Gray, Inc., 87 N.C. App. 143, 146-47, 360 S.E.2d 135, 138 (1987) (“Gray”).  The Court of Appeals held in Gray that Lanier did not mean all administrative civil penalties necessarily violated the state constitution.

The Court of Appeal majority in In re Civil Penalty concluded that Gray contradicted the Supreme Court’s holding in Lanier and declined to follow Gray.  92 N.C. App. 1, 13-14, 373 S.E.2d 572, 579 (1988).  Dissenting in In re Civil Penalty, Judge Becton disagreed, arguing that the majority erred by failing to follow the Court of Appeals’ interpretation of Lanier previously set out in Gray.  92 N.C. App. at 20, 373 S.E.2d at 583.

The Supreme Court agreed with the dissent and reversed, giving us the familiar language that the first Court of Appeals opinion addressing a particular question was binding on other panels of that court until overturned by higher authority. In re Civil Penalty, 324 N.C. at 384, 379 S.E.2d at 37.

So, to summarize the In re Civil Penalty saga, the Supreme Court issued a holding and a Court of Appeals panel thereafter “refined” or “interpreted” (insert your favorite verb here) that holding.  A later Court of Appeals panel believed that the refinement or interpretation was inconsistent with the Supreme Court’s holding and issued an opinion contrary to the first panel’s holding.  The Supreme Court reversed the second panel, leaving in place the Court of Appeals’ first take on the Supreme Court’s holding.

The Supreme Court specifically stated in its In re Civil Penalty holding:  “We conclude that the effect of the majority’s decision here was to overrule Gray.  This it may not do.”  Thus, the later panel’s belief, not matter how genuine and carefully argued, that it was following the letter and intent of the Supreme Court holding, was not grounds for reaching a different result than the earlier panel.

In other words, the first interpretation by a Court of Appeals panel sticks until reversed. To steal a concept from property law, first in time, first in right.

In re Civil Penalty: the Twenty-First Century Remix

The background leading up to the Supreme Court’s holding in In re Civil Penalty is important in light of recent developments in the Court of Appeals.  It seems to me that in some instances the Court of Appeals has reverted to the rationale on which the second Court of Appeals panel in In re Civil Penalty erroneously relied.

For instance, in State v. Jones, — N.C. App.—, —, 802 S.E.2d 528, 523 (2017), the Court of Appeals held that the issue before it regarding a criminal defendant’s right to seek certiorari following a guilty plea was controlled by the Supreme Court’s holding in State v. Stubbs, 368 N.C. 40, 770 S.E.2d 74 (2015), not by the post-Stubbs opinions of the Court of Appeals that, according to the Jones panel, misinterpreted Stubbs.  (I’ll divert for a second to note that the Jones rationale was specifically vindicated by the Supreme Court in State v. Ledbetter, — N.C. —, 814 S.E.2d 39, 43 n.2 (2018), though without any discussion of In re Civil Penalty.  Beth blogged on Ledbetter here.)

Recently, In re LEM, COA18-380 (2 October 2018), presents nearly all views of In re Civil Penalty.  In this termination of parental rights case, counsel for respondent-appellant father concluded that no meritorious appeal issues existed and filed a no-merit brief with the Court of Appeals.  Pursuant to N.C. Rule of Appellate Procedure 3.1, appellate counsel also asked the Court of Appeals to conduct an independent examination of the case.  In addition, appellate counsel wrote the respondent-appellant father advising him that he could file pro se arguments on his own behalf directly with the Court of Appeals.

When the respondent-appellant father made no filing, the Court of Appeals dismissed the appeal in a split opinion (split? “Fractured” might be more accurate.).  The In re LEM majority determined that it was bound by the Court of Appeal’s prior holding in In re LV, WL 3232738 (July 3, 2018), in which that court held that, where counsel had filed a no-merits brief and the appellant did not file any pro se argument, no issues were before the court and the appeal should be dismissed.  The In re LV panel specified in footnote 2 that the appellant was not entitled to the independent review by the Court that accompanied an Anders filing.

Judge Arrowood concurred in the In re LEM result only.  He conceded that dismissal of the appeal was required by fidelity to In re Civil Penalty but argued that the result in In re LV was premised upon a nonbinding concurring opinion in an earlier Court of Appeals case and thus was doctrinally suspect.

In dissent, Chief Judge McGee came out firing. She agreed with Judge Arrowood’s concurring opinion that the foundation of In re LV was built on sand.  She then cited numerous older Court of Appeals opinions where the court had conducted its own Anders­–like review even in the absence of issues being presented either by counsel or by the appellant.

Calls for the View of the Solicitor General: Can I Get a Witness

Which brings us to State v. Alonzo, 2018 WL 3977546 (August 21, 2018).  In Alonzo, the Court of Appeals panel noted that an earlier panel of that court held in State v. Lark, 198 N.C. App. 82, 678 S.E.2d 693 (2009), that the definition of “sexual act” now found in N.C. G.S. 14-27.20(4) applied to the “sexual acts” named in N.C.G.S. 14-318.4(a2).  The Alonzo panel also noted that a post-Lark panel had found that the “sexual acts” defined in N.C.G.S. 14-27.20(4) did not apply to N.C.G.S. 14-318.4(a2). State v. McClamb, 234 N.C. App. 753, 760 S.E.2d 337 (2014).  Faced with this discrepancy, the Alonzo court concluded that the earlier relevant opinion controlled, citing State v. Meadows, ___ N.C. App. ___, 806 S.E.2d 682 (2017), cert. granted, ___ N.C. ___, 812 S.E.2d 847 (2018) .  On 7 September 2018, the Supreme Court of North Carolina allowed a stay in Alonzo.  817 S.E.2d 733 (mem.).  (If you want some background on State v. Meadows, which was argued in the Supreme Court on Tuesday, October 9, see here).

All these cases illustrate emerging fault lines in the jurisprudence of the Court of Appeals.  Panels are disagreeing over which Court of Appeals opinion constitutes the controlling precedent that binds the Court of Appeals under In re Civil Penalty.

Now a panel of the Court of Appeals has called for help.  In the pending case of State v. Flora Riano Gonzales, No. 18-228, the panel issued an Order on 25 September 2018.  In its Order, the panel asked the parties for supplemental briefing “addressing this Court’s decision in State v. Alonzo.”  Specifically, the panel asks what precedential effects should the Court give to the Court of Appeals’ prior decisions in McClamb and Alonzo.  In addition, the panel asked whether “[u]nder Meadows, can this Court disregard more recent controlling precedent on the ground that it conflicts with earlier precedent even if the more recent precedent acknowledged and distinguished the earlier precedent?”  The Order also called “to the extent possible” for the views of the Solicitor General.

Although the Order called for a response by October 8, 2018, the docket indicates that both the Department of Justice and the Appellate Defender moved for an extension of time.  The motions were allowed.  While the docket does not divulge when the supplemental briefs will be due, the Court anticipates that the case will be set for oral argument on October 30, 2018.

So back to our original question.  What’s going on?  While those of us on the outside can only wait and watch with a wild surmise, it appears that there are different views within the Court of Appeals on the proper interpretation of In re Civil Penalty, whether the principle of “first in time, first in right” needs tweaking by the Supreme Court, and whether using dissents to move issues to the Supreme Court is the most efficient or effective way to resolve interpanel conflicts in the Court of Appeals.

As to this last point, the Court of Appeals now has a mechanism for resolving interpanel conflicts that did not exist when In re Civil Penalty was issued—en banc review.  The Gonzales order may be an indication that the Court of Appeals is considering how best to use its power to hold en banc hearings.  If that’s the case, remember that Appellate Rule 31.1(a)(2) states that such hearings are not favored unless “necessary to secure or maintain uniformity of the court’s decisions.”  While Rule 31.1 was promulgated by the Supreme Court, I strongly suspect that the Court of Appeals had a voice in its wording.

Any evolution, tweaking, or reinterpretation of In re Civil Penalty is obviously a matter of intense interest to appellate practitioners.  We will all continue to watch developments closely.  The briefing or result in Gonzales and/or Alonzo may give us some guidance.  Or the Supreme Court may need to step in again, as in In re Civil Penalty.  Your thoughts are invited.

–Bob Edmunds